766 F.2d 1053 (7th Cir. 1985), 84-2284, Bigby v. City of Chicago

Docket Nº:84-2284.
Citation:766 F.2d 1053
Party Name:William C. BIGBY, et al., Plaintiffs, and Maurice Thoele, et al., Intervening Plaintiffs-Appellants, v. CITY OF CHICAGO and Chicago Police Department, Defendants-Appellees.
Case Date:July 01, 1985
Court:United States Courts of Appeals, Court of Appeals for the Seventh Circuit

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766 F.2d 1053 (7th Cir. 1985)

William C. BIGBY, et al., Plaintiffs,


Maurice Thoele, et al., Intervening Plaintiffs-Appellants,


CITY OF CHICAGO and Chicago Police Department, Defendants-Appellees.

No. 84-2284.

United States Court of Appeals, Seventh Circuit

July 1, 1985

Argued April 18, 1985.

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[Copyrighted Material Omitted]

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John L. Gubbins, Chicago, Ill., for intervening plaintiffs-appellants.

Mary K. Rochford, Corp. Counsel, Chicago, Ill., for defendants-appellees.

Before CUDAHY and POSNER, Circuit Judges, and PELL, Senior Circuit Judge. [*]

POSNER, Circuit Judge.

A group of black police sergeants brought suit against the City of Chicago under Title VII of the Civil Rights Act of 1964, 42 U.S.C. Secs. 2000e et seq., alleging that the City had discriminated against them by refusing to promote them to lieutenant, because they had failed a lieutenants' examination which they contended was racially biased. A group of white and Hispanic police sergeants was allowed to intervene in the suit, to challenge the exam on a different ground: that it simply was not related to what a lieutenant does, and therefore violated the intervenors' rights under the due process clause of the Fourteenth Amendment. The district judge, after a bench trial, held in favor of the plaintiffs (the black sergeants) but against the intervenors. The judge's entire discussion of the intervenors' claim is as follows: "Although we have found defendants' 1977 lieutenants examination invalid under Title VII, it does not follow that it was arbitrary and capricious so as to entitle the intervenors, Maurice Thoele, et al. to recover under the Due Process Clause of the fourteenth amendment. While they may be the beneficiaries of the Bigby plaintiffs' victory, they are not entitled to any relief in their own right." They appeal.

It might seem that as "beneficiaries" of the plaintiffs' victory (from which, incidentally, the defendants have not appealed), the intervenors would have no standing to complain that the district court had failed to award them "relief in their own right"; it might seem that by knocking out the exam the plaintiffs had gotten everything the intervenors wanted. But the district judge ordered the immediate promotion of 11 black sergeants to lieutenant. If he had found that the intervenors' constitutional rights had been infringed as well as the plaintiffs', he surely would have ordered some of the intervenors promoted immediately, instead or in addition. Their claim is not moot.

The district judge rejected the claim on the ground that the lieutenants' examination was not arbitrary or capricious. But the basis of this conclusion is unexplained. The opinion contains many devastating criticisms of the lieutenants' examination en route to the conclusion, apropos the black sergeants' claim, that the exam is not "job related" within the meaning of cases interpreting Title VII. It is true that an exam might fail to survive the exacting scrutiny to which Title VII subjects examinations that have a disproportionate impact on a protected group such as blacks yet still not be so unreasonable as to create constitutional doubts unrelated to discrimination. Indeed, it would be quite odd if Title VII provided the measure of what is due process of law in public employment. This must have been what the judge thought. But what is unclear from

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the district judge's opinion--which has not a good word to say about the exam--or from the record before us on this appeal is why he thought the exam, though not job-related, was yet not arbitrary, capricious, or in a word irrational. If it were obvious why, we could uphold the district judge's decision despite his failure to explain. But it is not obvious. So if we thought that there was a constitutional right, unrelated to racial or other discrimination, to a rational test for promotion to a higher rung in the civil service of a state or municipality, we would remand the case for the judge to explain why he thought the lieutenants' test reasonable, though not job-related in a Title VII sense. But we do not think there is such a right. We first show how we reach this conclusion as a matter of principle, and then show that the case law supports our conclusion notwithstanding the contrary precedent of DiIulio v. Board of Fire & Police Comm'rs, 682 F.2d 666 (7th Cir.1982).

The due process clause of the Fourteenth Amendment forbids a state to deprive anyone of life, liberty, or property without due process of law. To make out a case under the clause one must therefore show first that one was deprived of life, liberty, or property, and second that the deprivation was brought about without due process of law. Neither element is present here.

The Supreme Court has held that the job of a tenured civil servant is property. See, e.g., Cleveland Bd. of Educ. v. Loudermill, --- U.S. ----, 105 S.Ct. 1487, 1491-92, 84 L.Ed.2d 494 (1985). So if a City of Chicago policeman, who under the law of Illinois cannot be fired without cause, see Ill.Rev.Stat. 1981, ch. 24, p 10-1-18.1, is fired, this is a deprivation of property; and he has only to show that it was done without due process of law in order to prove a violation of the Fourteenth Amendment. But these sergeants did not have a property interest in the rank, which they had not yet attained, of lieutenant. It is true that state law requires promotions of government employees, including policemen, to be "on the...

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